The Justice Department formally announced its plans to sue North Carolina over the state’s new controversial package of voter identification law on Monday. North Carolina joins Texas as states where the Justice Department is testing the limits of its power to prevent voter discrimination since the Supreme Court struck down a key provision of the Voting Rights Act in June.
Attorney General Eric Holder and the Department of Justice argue that four provisions of North Carolina’s new voter ID law are aimed at keeping minorities from voting. The Justice Department complaint, which will be filed in North Carolina’s Middle District, contends that the law denies the right to vote based on “race, color, or membership in a language minority group.”
“The North Carolina law includes troubling new restrictions such as provisions that will reduce early voting days, eliminate same-day registration during early voting, and pose a restrictive photo identification requirement for in-person voting and also prohibit the counting of otherwise legitimate provisional ballots that are mistakenly cast in the right county but in the wrong precinct,” Holder said at a press conference Monday.
“The Justice Department expects to show that the clear and intended effects of these changes would contract the electorate and result in the unequal access to the participation in the political process on account of race,” Holder said.
Holder said the lawsuit will show that the both the intention and consequences of the law keeps minorities from voting.
Specifically, the Department of Justice complaint cites the law’s reduction of early voting days, removal of registration on the day a person intends to vote if that day is in the early-voting period, and, according to the Justice Department, “the failure to provide adequate safeguards for voters who lack the limited types of acceptable photo identification cards that will be required in future elections.” The Justice Department wants a federal judge to rule that the provisions in the new voter ID law be put under federal scrutiny for a yet-undetermined period of time.
Texas and North Carolina are two of at least five states in the South that recently implemented new, more restrictive voter ID laws. In August, the Justice Department filed a lawsuit against Texas on the Lone Star state’s voter identification laws which, like with the North Carolina law, critics argue are politically motivated and essentially hinder minorities from being able to easily vote. Holder said that he expected the legal move to not be the last of its type in response to new voter laws.
“By restricting access and ease of voter participation, this new law would shrink, rather than expand, access to the franchise,” Holder said. “Allowing limits on voting rights that disproportionately exclude minority voters would be inconsistent with our ideals as a nation. Whenever warranted by the facts and the law, the department will not hesitate to use the tools and legal authorities at our disposal to fight against racial discrimination, to stand against disenfranchisement, and to safeguard the right of every eligible American to cast a ballot.”
Washington University in St. Louis political science professor Jon C. Rogowski said that the new voting identification law clearly have discriminatory effects.
“Because people of color possess official state-issued ID at considerably lower rates than whites, the new ID law could disproportionately reduce turnout about these populations, and thus election outcomes may reflect the will of a considerably whiter electorate,” Rogowski told TPM. “Moreover, all of these new restrictions are likely to reduce the level of overall turnout among people who are otherwise eligible to participate. President Obama won the state by only 14,000 votes in 2008, and lost the state by a still-small 100,000 vote margin in 2012.”
The U.S. Supreme Court’s June decision in Shelby County v. Holder essentially gutted Section 4 of the Voting Rights Act. Section 4 identified which jurisdictions with historical patterns of discrimination would be subjected to additional federal scrutiny. Holder has sought to fight what it calls discriminatory voter ID laws under Section 3, under which plaintiffs must successfully argue laws intentionally discriminate, which many legal experts say is not as powerful of a tool.
“It’s similar in the sense that you’ve got a formerly covered jurisdiction although North Carolina was only partially covered under Section 5 of the Voting Rights Act,” University of California Professor Rick Hasen, who specializes in voter laws, told TPM. Now, since, North Carolina is no longer covered by that aspect of the Voting Rights Act, “DOJ is trying to use what remains of its Voting Rights Act powers to try to reverse what its characterizing as attempts to make it harder for members of protected minority groups to vote and register to vote.”
In both the Texas case and the North Carolina case, the Justice Department is trying to put states with a history of discrimination back under federal oversight on new voter laws under the “bail-in” provision of Section 3, which means that certain jurisdictions even outside of the South that have deliberately tried to discriminate against certain ethnic groups must gain pre-clearance from the federal government under court order.
The current legal challenge in North Carolina is also expected to use Section 2 of the Voting Rights Act, which broadly prohibits voting discrimination against those based on race, color or membership of other minority language groups, as a way of stopping North Carolina from enforcing its laws.
Experts like Hasen said the bail-in provision is going to be a heavy lift with the North Carolina law.
“It’s going to be tough because it requires proof of intentional discrimination on the basis of race. We’ll have to wait and see what the evidence is but it’s a high legal standard to meet. In the Texas case, there was a recent court decision that found that Texas engaged in discrimination, there’s no such finding that I’m aware of coming out of North Carolina so we’ll have to see what evidence they have. They might try to prove it circumstantially but it’s going to be hard when the claim that was one of “you know this is partisan, this was not racial.”
Hasen added that using the bail-in is a risky move for the Department of Justice to take because it “makes it harder to get any legislative agreements in Congress to try and fix the Voting Rights Act. It looks like an aggressive move.”
Since the Republican-controlled North Carolina legislature passed the new laws, they have received national attention. Sen. Kay Hagan (D-NC), who is up for reelection in 2014, has repeatedly criticized the laws and called for the Justice Department to fight them. She quickly praised the Justice Department’s move on Monday.
“Now is not the time to be putting up barriers to the right to vote, and I applaud the Justice Department’s decision to challenge the new voter access restrictions in North Carolina that would, among other things, cut off a week of early voting and end same day registration,” Hagan said in a statement. “We shouldn’t be giving everyday North Carolinians fewer opportunities to make their voices heard while we are giving corporations more opportunities to influence elections. Restricting access to this basic right is simply not in sync with our North Carolina values, and it goes against our state’s proud tradition of eliminating barriers to participation in the democratic process.”